Introduction
1. This appeal arises from the judgment of the Senior Resident Magistrate in Ndhiwa Succession Cause No. 72 of 2018, regarding the estate of the late Jacob Odindo Odindo (the Deceased). The primary issue is the entitlement to Land Parcel No. KABUOCH/K/KOGUTA/152, specifically whether the Respondent, whose lineage is claimed to stem from a wife-inheritance (tero/levirate) union under Luo customary law, is a beneficiary of the Deceased’s estate.
First Appellate Duty
2. This is a first appeal, which requires a re-evaluation of the evidence afresh and the drawing of independent conclusions, keeping in mind that the appellate court did not observe the witnesses, as established in Selle & Another v. Associated Motor Boat Co. Ltd [1968] EA 123.
3. The evidence presented indicates that Okuthe, the grandfather of the Appellant Daniel Okello Ng’ongo and the great great grand father Respondent, Joab Otieno, had four sons:
- Otieno
- Orwa
- Obel
- Odindo
Odindo married Okoko but later passed away, and his wife was inherited by Obel. Obel had two wives:
- Kika
- Odiaga
Kika had the following children:
- Okuthe
- Ochwa
- Dalmas
- Nyange
- Pamy
- Pacho
- Opere
Odiaga had the following children:
- Sitanus
- Mlongo
- Statilaus Muga
- Okuthe (daughter)
Sitanus married two wives, Kristina Aluoch and Slemia Abich, and had the following children:
- Aluoch is the mother to : Daniel Okello, Otieno, Chuchu
-Slemia is the mother to : Joshua Odhiambo, Fredrick Otieno
Statilaus had one child, Paul Odhiambo Muga.
4. The Appellant, Daniel Okello Ngongo, and the Respondent, Joab Otieno Ouma, contest the rightful beneficiary to the estate of Jacob Odindo Odindo. Specifically, the Appellant asserts a closer familial link, claiming that Jacob Odindo and his father, Ngo'ngo Obel, were half-brothers, sharing the same father (Obel) but different mothers. Jacob was born after Okoko was inherited by Obel following the death of her first husband, Odindo. The Respondent is the son of Ignasio Ouma, who is the son of Syprianus Akiri Nyodongo, thus a step-great-great-grandson of Jacob Odindo. The Appellant claims the suit land was a gift from his father, Ngo'ngo Obel, to Jacob Odindo after Jacob's eviction in 1976. The Appellant argues that the trial magistrate erred in recognizing the Respondent as a beneficiary, contending that the Respondent does not qualify as a dependant under the Law of Succession Act. The Appellant maintains that he has established his case per the Evidence Act and prays for the appeal to be allowed with costs.
5. The Respondent contends that he is the rightful beneficiary of the estate as a descendant within the direct lineage of the Deceased, asserting that the suit property constituted the matrimonial home of Okoko and the Deceased. He argues that under Sections 39 and 66 of the Law of Succession Act, he qualifies as a beneficiary. The Respondent asserts that the Appellant belongs to a different lineage (Odianga) and cannot claim the estate, having benefited from another estate. He cites *Re Estate of Sandislaus Murianki Mutwiria (2022)* for the principle of entitlement of children as dependants and states that widow inheritance under Luo customary law does not transfer ownership of the matrimonial home to the inheritor. He contends that the trial court properly considered all evidence and correctly determined lineage and entitlement. Furthermore, he argues that the burden of proof lay with the Appellant under Section 107 of the Evidence Act, which was not met, and thus the appeal lacks merit.
Issues
3.I have carefully re-evaluated the entire evidence on record and the issues for determination are:
a. Whether Luo customary law on wife inheritance applies to the Deceased’s estate;
b. Whether children born of a wife-inheritance (tero/levirate) union are entitled to inherit from the Deceased;
c. Whether the trial court erred in law or fact in holding that the Respondent is a child of the Deceased and entitled to inherit.
Applicable Law and Authorities
4. The Law of Succession Act and the Constitution establish the statutory and constitutional framework:
Section 3(2) and Section 29 of the Law of Succession Act recognize children for succession purposes regardless of the circumstances of birth. Section 3(2) states that a child born to a female person out of wedlock shall have a relationship with other persons as though born in wedlock.
5. Article 27 of the Constitution guarantees equality and prohibits discrimination based on birth and status, as affirmed in Peter Karumbi Keingati & 4 Others -Vs- Dr. Ann Nyokabi Nguthi & 4 Others (2015) eKLR.
6. The deceased was a Luo by tribe, born from a levirate relationship between his mother Okoko (wife of Odindo) and Obel, Odindo's brother. Luo customary law recognizes wife inheritance (tero/levirate); children from such unions are considered part of the deceased husband's lineage for family and succession purposes (see Otieno v. Ougo & Another [1986–1989] EA 468).
Analysis
Status of Children Born of Wife-Inheritance
7. The record shows that the Odindo 's widow was subject to wife-inheritance within the family, and deceased herein was born . the Respondent's parentage arises from this union. Under Luo customs, children born of a widow in a levirate union are regarded as belonging to the deceased husband's lineage, and such children are not considered illegitimate for family continuity and succession.
Consistency with Statutory Law
8. The Law of Succession Act and constitutional equality principles reinforce the inclusion of children born outside conventional marital circumstances. Sections 3(2) and 29 demonstrate that modern Kenyan law does not permit discrimination among children in succession based on birth or conception manner. Thus, attributing the child to the deceased under customary norms aligns with statutory and constitutional law.
Whether the Trial Court Erred
9. The trial court found the Respondent to be a great-grandchild of the Deceased and thus entitled to share in the estate. Given the evidence of wife-inheritance and applicable legal principles, the trial court's decision was correct. The law on degree of consanguinity is not applicable to step brothers (sons of a levirate father ) in relation to the estate of a child born out of a levirate union under luo customary law . The Appellant's challenge does not identify any misapprehension of material evidence or legal principle sufficient to overturn that finding. The Appellant , Joshua Odhiambo Kangongo , Paul Odhiambo Muga are not descendants of Okoko, the mother of the Deceased, and therefore have no interest in the estate per Luo customary law.
Findings
10. For the reasons stated, I find that:
a. Children born through wife-inheritance (levirate/tero) under Luo customary law are deemed part of the deceased’s lineage for succession purposes.
b. Such children are entitled to inherit from the estate of the deceased.
c. The Respondent qualifies as a beneficiary of the estate within the meaning of Section 29 of the Law of Succession Act.
d. The trial court correctly applied both customary and statutory law in recognizing the Respondent’s entitlement, while the Appellant and his associates should be removed from the grant as they have no interest in the estate under Luo customary law.
Disposition
11. The appeal is dismissed.
12. The judgment of the Senior Resident Magistrate in Ndhiwa Succession Cause No. 72 of 2018 is upheld, save that the names of the Appellant , Joshua Odhiambo Kangongo , Paul Odhiambo Muga shall be removed from the grant.
13. The grant shall be amended to reflect the name of the Respondent only.
14. Summons for conformation of grant dated be placed before the trial Court for directions on
14. Each party shall bear This own costs.
T. A. ODERA
JUDGE
24.03.202
Delivered virtually via Teams Platform on this 23rd day of March 2026, in the presence of Mr. Ogendo, Court Assistant. Parties absent.
1. This appeal arises from the judgment of the Senior Resident Magistrate in Ndhiwa Succession Cause No. 72 of 2018, regarding the estate of the late Jacob Odindo Odindo (the Deceased). The primary issue is the entitlement to Land Parcel No. KABUOCH/K/KOGUTA/152, specifically whether the Respondent, whose lineage is claimed to stem from a wife-inheritance (tero/levirate) union under Luo customary law, is a beneficiary of the Deceased’s estate.
First Appellate Duty
2. This is a first appeal, which requires a re-evaluation of the evidence afresh and the drawing of independent conclusions, keeping in mind that the appellate court did not observe the witnesses, as established in Selle & Another v. Associated Motor Boat Co. Ltd [1968] EA 123.
3. The evidence presented indicates that Okuthe, the grandfather of the Appellant Daniel Okello Ng’ongo and the great great grand father Respondent, Joab Otieno, had four sons:
- Otieno
- Orwa
- Obel
- Odindo
Odindo married Okoko but later passed away, and his wife was inherited by Obel. Obel had two wives:
- Kika
- Odiaga
Kika had the following children:
- Okuthe
- Ochwa
- Dalmas
- Nyange
- Pamy
- Pacho
- Opere
Odiaga had the following children:
- Sitanus
- Mlongo
- Statilaus Muga
- Okuthe (daughter)
Sitanus married two wives, Kristina Aluoch and Slemia Abich, and had the following children:
- Aluoch is the mother to : Daniel Okello, Otieno, Chuchu
-Slemia is the mother to : Joshua Odhiambo, Fredrick Otieno
Statilaus had one child, Paul Odhiambo Muga.
4. The Appellant, Daniel Okello Ngongo, and the Respondent, Joab Otieno Ouma, contest the rightful beneficiary to the estate of Jacob Odindo Odindo. Specifically, the Appellant asserts a closer familial link, claiming that Jacob Odindo and his father, Ngo'ngo Obel, were half-brothers, sharing the same father (Obel) but different mothers. Jacob was born after Okoko was inherited by Obel following the death of her first husband, Odindo. The Respondent is the son of Ignasio Ouma, who is the son of Syprianus Akiri Nyodongo, thus a step-great-great-grandson of Jacob Odindo. The Appellant claims the suit land was a gift from his father, Ngo'ngo Obel, to Jacob Odindo after Jacob's eviction in 1976. The Appellant argues that the trial magistrate erred in recognizing the Respondent as a beneficiary, contending that the Respondent does not qualify as a dependant under the Law of Succession Act. The Appellant maintains that he has established his case per the Evidence Act and prays for the appeal to be allowed with costs.
5. The Respondent contends that he is the rightful beneficiary of the estate as a descendant within the direct lineage of the Deceased, asserting that the suit property constituted the matrimonial home of Okoko and the Deceased. He argues that under Sections 39 and 66 of the Law of Succession Act, he qualifies as a beneficiary. The Respondent asserts that the Appellant belongs to a different lineage (Odianga) and cannot claim the estate, having benefited from another estate. He cites *Re Estate of Sandislaus Murianki Mutwiria (2022)* for the principle of entitlement of children as dependants and states that widow inheritance under Luo customary law does not transfer ownership of the matrimonial home to the inheritor. He contends that the trial court properly considered all evidence and correctly determined lineage and entitlement. Furthermore, he argues that the burden of proof lay with the Appellant under Section 107 of the Evidence Act, which was not met, and thus the appeal lacks merit.
Issues
3.I have carefully re-evaluated the entire evidence on record and the issues for determination are:
a. Whether Luo customary law on wife inheritance applies to the Deceased’s estate;
b. Whether children born of a wife-inheritance (tero/levirate) union are entitled to inherit from the Deceased;
c. Whether the trial court erred in law or fact in holding that the Respondent is a child of the Deceased and entitled to inherit.
Applicable Law and Authorities
4. The Law of Succession Act and the Constitution establish the statutory and constitutional framework:
Section 3(2) and Section 29 of the Law of Succession Act recognize children for succession purposes regardless of the circumstances of birth. Section 3(2) states that a child born to a female person out of wedlock shall have a relationship with other persons as though born in wedlock.
5. Article 27 of the Constitution guarantees equality and prohibits discrimination based on birth and status, as affirmed in Peter Karumbi Keingati & 4 Others -Vs- Dr. Ann Nyokabi Nguthi & 4 Others (2015) eKLR.
6. The deceased was a Luo by tribe, born from a levirate relationship between his mother Okoko (wife of Odindo) and Obel, Odindo's brother. Luo customary law recognizes wife inheritance (tero/levirate); children from such unions are considered part of the deceased husband's lineage for family and succession purposes (see Otieno v. Ougo & Another [1986–1989] EA 468).
Analysis
Status of Children Born of Wife-Inheritance
7. The record shows that the Odindo 's widow was subject to wife-inheritance within the family, and deceased herein was born . the Respondent's parentage arises from this union. Under Luo customs, children born of a widow in a levirate union are regarded as belonging to the deceased husband's lineage, and such children are not considered illegitimate for family continuity and succession.
Consistency with Statutory Law
8. The Law of Succession Act and constitutional equality principles reinforce the inclusion of children born outside conventional marital circumstances. Sections 3(2) and 29 demonstrate that modern Kenyan law does not permit discrimination among children in succession based on birth or conception manner. Thus, attributing the child to the deceased under customary norms aligns with statutory and constitutional law.
Whether the Trial Court Erred
9. The trial court found the Respondent to be a great-grandchild of the Deceased and thus entitled to share in the estate. Given the evidence of wife-inheritance and applicable legal principles, the trial court's decision was correct. The law on degree of consanguinity is not applicable to step brothers (sons of a levirate father ) in relation to the estate of a child born out of a levirate union under luo customary law . The Appellant's challenge does not identify any misapprehension of material evidence or legal principle sufficient to overturn that finding. The Appellant , Joshua Odhiambo Kangongo , Paul Odhiambo Muga are not descendants of Okoko, the mother of the Deceased, and therefore have no interest in the estate per Luo customary law.
Findings
10. For the reasons stated, I find that:
a. Children born through wife-inheritance (levirate/tero) under Luo customary law are deemed part of the deceased’s lineage for succession purposes.
b. Such children are entitled to inherit from the estate of the deceased.
c. The Respondent qualifies as a beneficiary of the estate within the meaning of Section 29 of the Law of Succession Act.
d. The trial court correctly applied both customary and statutory law in recognizing the Respondent’s entitlement, while the Appellant and his associates should be removed from the grant as they have no interest in the estate under Luo customary law.
Disposition
11. The appeal is dismissed.
12. The judgment of the Senior Resident Magistrate in Ndhiwa Succession Cause No. 72 of 2018 is upheld, save that the names of the Appellant , Joshua Odhiambo Kangongo , Paul Odhiambo Muga shall be removed from the grant.
13. The grant shall be amended to reflect the name of the Respondent only.
14. Summons for conformation of grant dated be placed before the trial Court for directions on
14. Each party shall bear This own costs.
T. A. ODERA
JUDGE
24.03.202
Delivered virtually via Teams Platform on this 23rd day of March 2026, in the presence of Mr. Ogendo, Court Assistant. Parties absent.